Citation Nr: 0123052
Decision Date: 09/21/01 Archive Date: 09/24/01
DOCKET NO. 98-02 162 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an extension beyond the basic period of
eligibility for a program of vocational rehabilitation
training under the terms and conditions of Chapter 31, Title
38, United States Code.
(The issues of entitlement to service connection for cervical
spine injury and left knee injury and increased evaluation
for lumbar strain are the subjects of a separate decision by
the Board.)
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
C. L. Mason, Counsel
INTRODUCTION
The veteran served on active duty from July 1974 to January
1982.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a July 1997 determination by the
Vocational Rehabilitation and Counseling Psychologist (VR&C)
at the Department of Veterans Affairs (VA) Regional Office
(RO) in St. Petersburg, Florida, which denied Chapter 31
vocational rehabilitation training on the basis that the
veteran's 12-year period of basic eligibility had expired.
The veteran and his representative appeared before the
undersigned Member of the Board at a hearing at the RO in
January 2001.
FINDINGS OF FACT
1. Service connection is currently in effect for lumbar
strain, assigned a 10 percent evaluation and seborrheic
dermatitis, assigned a noncompensable evaluation.
2. The veteran does not have a serious employment handicap.
CONCLUSION OF LAW
The criteria to establish the presence of a serious
employment handicap pursuant to Chapter 31, Title 38, United
States Code, for the purposes of extending the veteran's
period of entitlement to benefits under this chapter are not
met. 38 U.S.C.A. §§ 3101, 3103 (West 1991 & Supp. 2000);
Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A.
§§ 5102-7 (West Supp. 2001); 38 C.F.R. §§ 21.42, 21.44, 21.52
(2000); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified
as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a)).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
At the outset, the Board notes that there was a significant
change in the law during the pendency of this appeal. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096, (codified at 38 U.S.C.A. §§ 5102-5107
(2001)). This law redefined the obligations of VA with
respect to the duty to assist and includes an enhanced duty
to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits. In
accordance with the revised statute and the implementing
regulations, VA has a duty to notify the veteran of the
evidence needed to substantiate his claim. As part of that
notice VA shall notify the veteran of what evidence will be
obtained by VA, and what evidence the veteran must provide.
VA also has a duty to assist the veteran in obtaining such
evidence if a reasonable possibility exists that such
assistance would aid in substantiating the claim. See 38
U.S.C.A. §§ 5102-5107; 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a),
3.159 and 3.326(a)).
The duty to assist also includes making reasonable efforts to
obtain relevant records designated by the veteran, to notify
the veteran of records that could not be obtained, and to
explain any additional effort in obtaining the relevant
records. The efforts to obtain records from a Federal
department or agency will continue until the records are
obtained, unless it is reasonably certain that such records
do not exist or that further efforts to obtain those records
would be futile. Here, the Board notes that the RO obtained
the veteran's SSA claim records and VA examination records.
The veteran has not indicated that there are any additional
records that are pertinent to his claim. According, the
Board finds that VA's duty to assist has been met.
Additionally, the Board notes that the veteran has been
notified on several occasions during the course of the
appeal, including at his most recent Board hearing in January
2001, of the type of evidence necessary to substantiate his
claim.
I. Background
A. Service-Connected Disabilities
In a May 1982 rating decision, the veteran was granted
service connection for lumbosacral strain with a 10 percent
rating and seborrheic dermatitis of the face and ears with a
noncompensable evaluation.
In March 1997, the veteran requested an increased rating for
his service-connected back and claimed service connection for
injuries to his left knee and cervical spine.
In April 1997, the veteran was afforded a VA examination. At
that time, the veteran complained of pain in his neck, low
back, and right knee. Physical examination revealed full
range of motion in the knees without crepitus, effusion, or
instability as well as good range of motion of the cervical
spine without muscle spasm. There was some limitation of
motion of the lumbar spine with complaints of pain, but no
evidence of muscle spasm.
In a May 1997 rating decision, an increased rating in excess
of 10 percent for lumbosacral strain was denied as well as
service connection for injuries of the cervical spine and
left knee. Although the veteran filed a notice of
disagreement and the RO issued a statement of the case, the
veteran did not file a timely substantive appeal. Thus, the
veteran's combined rating for his service-connected
disabilities is 10 percent.
B. Vocational Rehabilitation Claim
The record shows that the veteran received a certificate of
completion in
secretarial-oriented program from the New York School of
Business in 1969 and that he attended and received a
certificate from the North American School of Drafting while
he was in service between 1978 and 1982. He earned an
Associate Arts Degree in visual communication at Maryland
College of Art and Design in 1986 using Chapter 31 benefits.
In his educational pursuits, the veteran utilized 32 months
of VA Chapter 31 benefits.
Since leaving the service in 1982, the veteran worked as a
drafter, graphic designer, and technical illustrator as well
as an assistant curator and project director at a design firm
and gallery in the Washington, D.C. area from 1982 to 1986.
From 1986 to 1989, he worked as a typographer and art
director at a communication company in Washington, D.C.
Thereafter, he moved to Florida where he worked at a
convenience store from 1989 to 1990, as a director of an art
program for Palm Beach County School Board from 1990 to 1991,
and as assistant store manager at a Circle K from 1991 until
approximately 1997. He began receiving unemployment benefits
in 1997.
The veteran was seen in counseling from May to July 1997, in
regard to a recent application by him for vocational
rehabilitation training under Chapter 31. The vocational
rehabilitation officer determined that the veteran had an
impairment which was substantially based on his service-
connected back disability, and had not overcome this
employment handicap with current stable employment. However,
it was further determined that while the veteran had an
employment handicap, he did not have a serious employment
handicap. Although it was determined that the veteran's
service-connected disabilities imposed some restrictions on
his employability, his disabilities were determined to be not
of such severity that they prevented him from preparing for
and securing employment. It was noted that the veteran had
not had substantial periods of unemployment or an unstable
work history which could be attributed to service-connected
disabilities. It was noted that the veteran's Eligibility
Termination Date was May 20, 1994.
In sum, the vocational rehabilitation counselor denied the
veteran an extension because his basic 12-year eligibility
period had expired and the vocational rehabilitation
counseling officer determined that the veteran did not have a
serious employment handicap. A serious employment handicap
is one of the required elements for an extension beyond the
basic 12-year eligibility period. The veteran appealed that
determination.
In August 2000, the RO received the veteran's Social Security
Administration (SSA) claim records. According to the SSA
records dated in November 1997, the veteran was not qualified
for SSA benefits as he was not considered disabled under SSA
rules.
At his January 2001 hearing before a Member of the Board, the
veteran testified that he needed additional training because
occupational requirements in his selected career field and
advanced technology outdated his acquired skills. The
veteran reported that he was currently doing some freelance
work such as business cards and brochures, but that he had
not had a client since November 2000. The veteran testified
that his serious employment handicap was that he did not have
the skills to compete in the area in which he trained. When
directly questioned regarding his service-connected
disabilities, the veteran stated that his lumbar strain and
dermatitis caused an employment handicap, but he did explain
how such disabilities affected his employment ability.
II. Analysis
The legal criteria governing the basic period of eligibility
for Chapter 31 vocational rehabilitation training provide
that the basic 12-year period of eligibility begins to run on
the day that the VA notified the veteran of the existence of
a compensable service-connected disability. 38 U.S.C.A. §
3103(b)(3); 38 C.F.R. § 21.42(a). In this case, the 12-year
period expired on May 20, 1994. As noted above, the RO
determined that the veteran has an employment handicap.
However, as noted, as of May 20, 1994, his basic period of
eligibility expired. After the expiration of his basic
period of eligibility, 38 U.S.C.A. § 3103(c) permits a
veteran to obtain Chapter 31 benefits after the basic 12-year
statutory period of eligibility in certain circumstances. In
any event, a serious employment handicap is required. 38
U.S.C.A. § 3103(c); 38 C.F.R. § 21.44.
However, as set forth below, the Board finds that the veteran
does not have a serious employment handicap, and, thus, is
not entitled to any further benefits under the Chapter 31
program. As such, a determination regarding whether
additional Chapter 31 services may be provided beyond the
expired period is not reached in this case because the
veteran is not eligible for any Chapter 31 services, much
less additional services.
The ending date for the period of eligibility may be extended
if the veteran has a serious employment handicap and his
employment and particular handicap require an extension to
pursue a VR program. 38 U.S.C.A. § 3103(c); 38 C.F.R. §
21.44. The statute currently defines a "serious employment
handicap" as a significant impairment, resulting in
substantial part from a service-connected disability rated at
10 percent or more, of a veteran's ability to prepare for,
obtain, or retain employment consistent with such veteran's
abilities, aptitudes, and interests. 38 U.S.C.A. § 3101(7).
According to the relevant regulations, a serious employment
handicap will be found if the veteran has a neuropsychiatric
service-connected disability rated at 30 percent or more, or
any other service-connected disability rated at 50 percent or
more. 38 C.F.R. § 21.52(c). A serious employment handicap
may be found if the veteran's service-connected disability
has been rated at 30 or 40 percent disabling, and (1) the
veteran has a prior history of poor adjustment in training
and employment, and special efforts will be needed if he is
to be rehabilitated; or (2) the veteran's situation presents
special problems due to non-service connected disability,
family pressures, etc., and a number of special and
supportive services are needed to effect rehabilitation. 38
C.F.R. § 21.52(d). A serious employment handicap will not
normally be found if the veteran's service-connected
disabilities are rated at less than 30 percent disabling,
unless (1) his service-connected disability has caused
substantial periods of unemployment or an unstable work
history; or (2) he has demonstrated a pattern of maladaptive
behavior which is shown by a history of withdrawal from
society or continuing dependency on government income support
programs. 38 C.F.R. § 21.52(e).
Here, the veteran contends that he has a serious employment
handicap because there is significant impairment of his
ability to obtain or maintain employment consistent with his
abilities, aptitudes, and interests due to his outdated
skills.
In this case, the veteran does not meet the criteria for a
serious employment handicap. The Board notes that it has
been determined that the veteran does have certain
restrictions imposed by his service-connected back
disability, such limitations or restrictions in his ability
to perform prolonged walking, standing or sitting. However,
according to the vocational rehabilitation counselor, the
veteran has transferable skills in teaching, supervision, and
graphic arts.
In order for the veteran to show that he has a serious
employment handicap, he must demonstrate that his service-
connected disabilities have caused substantial periods of
unemployment or unstable work history and that he has a
demonstrated pattern of maladaptive behavior which is shown
by a history of withdrawal from society or continuing
dependency on government income support programs.
The record does not show substantial periods of unemployment
or unstable work history. The veteran has held a variety of
jobs since his discharge from service in 1982, and testified
that after his last employment in 1997, he began doing
freelance work and had continued such through 2000. Over the
years, the Board notes that there is no evidence indication
that the veteran's service-connected disabilities prevented
him from engaging in employment or that he was ever
terminated from employment due to his service-connected
disabilities. Moreover, there is no evidence of record that
his service-connected disabilities have worsened and his
assertions do not show that his service-connected
disabilities substantially contribute to an impairment of his
employability. Thus, the Board concludes that the record
does not show that there is significant impairment of the
veteran's ability to obtain or maintain employment consistent
with his abilities, aptitudes, and interests due to service-
connected disability to include his back and skin
disabilities.
For the reasons shown above the Board has determined that the
preponderance of the evidence is against the claim of
entitlement an extension beyond the basic period of
eligibility for a program of vocational rehabilitation
services.
ORDER
The claim for an extension beyond the basic period of
eligibility for a program of vocational rehabilitation
services under the provisions of Chapter 31, Title 38 of the
United States Code is denied.
MARY GALLAGHER
Member, Board of Veterans' Appeals